U.S. v. Romero-Reyna, ROMERO-REYN

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before POLITZ, KING, and SMITH; POLITZ
• Citation: 867 F.2d 834
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ernestoefendant-Appellant. Summary Calendar.
• Docket Number: No. 88-1437,ROMERO-REYN,D,88-1437
• Decision Date: 24 February 1989

Page 834

867 F.2d 834 UNITED STATES of America, Plaintiff-Appellee,
v.
Ernesto ROMERO-REYNA, Defendant-Appellant. No. 88-1437 Summary Calendar. United States Court of Appeals,
Fifth Circuit. Feb. 24, 1989.

Elizabeth Rogers, First Asst. Federal Public Defender, Lucien B. Campbell, Federal Public Defender, El Paso, Tex., for defendant-appellant.

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Mrs. LeRoy M. Jahn, Michael R. Hardy, Asst. U.S. Attys., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before POLITZ, KING, and SMITH, Circuit Judges.

POLITZ, Circuit Judge:

Ernesto Romero-Reyna appeals his convictions of possession of marihuana and heroin with intention to distribute, challenging: (1) the trial court's ruling on a motion to suppress evidence; (2) the sufficiency of the evidence; and (3) the trial court's refusal to quash the jury panel because of Batson violations. Finding no merit in the first two challenges, but merit in the third, for the reasons assigned we remand for further proceedings.

Background

On December 15, 1987, at approximately 10:00 a.m., two border patrol agents in a marked vehicle were patrolling the Rio Grande River's San Vincette crossing. They observed Romero on foot talking with a person on horseback. Upon sighting the agents the horseman headed toward the Rio Grande, one-half mile distant. The agents approached Romero and asked his citizenship. He replied that he was a U.S. citizen, and produced a temporary Texas driver's license. Asked why he was on foot, unusual in this secluded area, Romero responded that he had driven a man and his two children that morning from Fort Stockton, a city 140 miles distant, to the San Vincette crossing, and that he was in the process of returning to his vehicle, which needed a jump-start.

The agents followed Romero 100 yards or so to his vehicle, a Blazer, whose interior was uncommonly clean, containing only a gas can, funnel, and siphon hose. In response to an agent's inquiry, Romero said that the Blazer belonged to Luis Alberto Villarreal, a suspected local smuggler.

An agent opened the Blazer's tailgate revealing two shiny screws on straps securing the gas tank. Upon closer examination the agents became suspicious that the gas tank contained contraband. Romero was advised of his Miranda rights and placed in the agents' vehicle. The Blazer was driven to a Park Service garage where an inspection of the gas tank disclosed 42.5 pounds of marihuana and over a kilogram of heroin.

Romero was indicted for possessing with intent to distribute heroin and marihuana in violation of 21 U.S.C. Sec. 841(a). The district court denied Romero's motion to suppress the contraband and the jury found him guilty on both counts. Romero was sentenced to 180 months on the heroin count and 60 concurrent months on the marihuana count, with concurrent five-year supervised release terms. He timely appealed.

Analysis

In challenging on appeal the denial of his suppression motion, Romero raises for the first time the propriety of the initial contact between the agents and himself, and the discovery of the shiny screws, indicating tampering with the gas tank, made when the agent opened the Blazer's tailgate. These issues were not presented to the trial court and, as we have repeatedly declared, such issues will not be considered on appeal unless they involve only a question of law and the failure to consider them will result in manifest injustice. Self v. Blackburn, 751 F.2d 789 (5th Cir.1985); United States v. Parker, 722 F.2d 179 (5th Cir.1983); United States v. Jackson, 700 F.2d 181 (5th Cir.1983). Romero's complaints do not qualify; they involve factual issues.

Romero also maintains that there was insufficient evidence that he knowingly possessed with intent to distribute the contraband which was secreted in the gas tank. Our review of the record does not lead to that conclusion.

In our review we consider the evidence, and all reasonable inferences to be drawn from it, in the light most favorable to the government. United States v. Prieto-Tejas, 779 F.2d 1098 (5th Cir.1986).

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Further, the evidence need not exclude every reasonable hypothesis of innocence, provided that a reasonable trier of fact could find guilt proven beyond a reasonable doubt. United States v. Bell, 678 F.2d 547 (5th Cir.1982) (en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983).

To establish the offense of possession of a controlled substance with intent to distribute, the government must prove the knowing possession of the contraband with intent to distribute. United States v. Williams-Hendricks, 805 F.2d 496 (5th Cir.1986). "One who owns or exercises dominion or control over a motor vehicle in which a contraband substance is concealed may be deemed to possess the contraband." United States v. Olivier-Becerril, 861 F.2d 424, 426 (5th Cir.1988), quoting United States v. Vergara, 687 F.2d 57, 62 (5th Cir.1982). The "proof that possession of contraband is knowing will usually depend on inference and circumstantial evidence." United States v. Richardson, 848 F.2d 509, 514 (5th Cir.1988). Further, "knowledge of the presence of the contraband may ordinarily be inferred from the exercise of control over the vehicle in which it is concealed." Id. at 513. But when the case involves "hidden...